Q:

What is the difference between natural law and positive law?

A:

According to the University of Louisiana at Lafayette, natural law refers to those laws that derive their legitimacy from moral reasoning and are based on what is believed to serve the best interests of the common good while positive laws are those that obtain their legitimacy through legislative means and are enforced by civil or political authority. Based on a strict interpretation of natural law, any legal statute that conflicts with natural law is unjust and should not be obeyed. According to positive legal theory, the legitimacy of a law is not relevant to its morality, but rather stems from the power of the authority that enacted it.

Positive legal theory, or legal positivism, takes its name from the verb "to posit." The idea of positive law was developed in the 1600s and grew in opposition to the concept of natural law, which can be subject to cultural relativism and personal interpretation. The early proponents of positive law, such as Thomas Hobbes and John Austin, argued that manmade and state-enforced laws are necessary to protect the rights of the governed, resolve civil disputes and to maintain safety and order in society. According to Hobbes, this reflects a social contract between the governed and those who are entrusted with the power to both create and enforce laws.

Natural law theory condones civil disobedience based on the premise that when a law is unjust, obedience to that law is also unjust. The civil disobedience advocated by Martin Luther King Jr. and Mahatma Gandhi, however, exemplifies a nonviolent form of disobedience to law and differs from the violent disobedience that represents what is generally referred to as terrorism.

 

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